Section 2.29 Work Product Generally

• Library: Discovery 2015

The concepts of privilege and work product have long caused confusion as they relate to discovery, but they are distinct and must be treated differently. On one hand, the attorney‑client privilege provides a complete immunity from discovery of written or oral communications between the attorney and client unless the privilege is waived. On the other hand, the work product rule provides only a qualified immunity from discovery for documents or other tangible things prepared by a party or the party’s representative in anticipation of litigation or for purposes of trial. The work product rule does not provide an absolute immunity from discovery in the form of a privilege; rather, these matters are protected unless another party can show a substantial need for them and an inability, without undue hardship, to obtain a substantial equivalent by other means.

The distinction originates from the landmark decision of Hickman v. Taylor, 329 U.S. 495 (1947). Missouri courts have, on occasion, tended to commingle the two principles. See:

· State ex rel. Terminal R. Ass’n of St. Louis v. Flynn, 257 S.W.2d 69 (Mo. banc 1953)

· State ex rel. St. Louis Pub. Serv. Co. v. McMillian, 351 S.W.2d 22 (Mo. banc 1961)

· State ex rel. Mo. Pub. Serv. Co. v. Elliott, 434 S.W.2d 532 (Mo. banc 1968)

· Lindberg v. Safeway Stores, Inc., 525 S.W.2d 571 (Mo. App. W.D. 1975)

Because the basis of Federal Rule of Civil Procedure 26(b)(3), from which Rule 56.01(b)(3) is taken, rests in Hickman, 329 U.S. 495, and because Rule 56.01(b)(3) separates privilege and work product by specifically providing for discovery of trial preparation materials, the prior cases holding that work product is included in the term privilege should no longer be controlling. Later Missouri cases recognize the distinction between the complete immunity from discovery afforded matters within the attorney‑client privilege and the qualified immunity from discovery afforded those matters classified as work product or trial preparation materials. See:

· State ex rel. Cain v. Barker, 540 S.W.2d 50 (Mo. banc 1976)

· Porter ex rel. Aylward v. Gottschall, 615 S.W.2d 63 (Mo. banc 1981)

· State ex rel. Spear v. Davis, 596 S.W.2d 499 (Mo. App. E.D. 1980)

· Halford v. Yandell, 558 S.W.2d 400 (Mo. App. S.D. 1977)

· State ex rel. Great Am. Ins. Co. v. Smith, 574 S.W.2d 379 (Mo. banc 1978)

· Truck Ins. Exch. v. Hunt, 590 S.W.2d 425 (Mo. App. S.D. 1979)

· State ex rel. J.E. Dunn Constr. Co. v. Sprinkle, 650 S.W.2d 707 (Mo. App. W.D. 1983)

· State ex rel. Friedman v. Provaznik, 668 S.W.2d 76 (Mo. banc 1984)

· May Dep’t Stores Co. v. Ryan, 699 S.W.2d 134 (Mo. App. E.D. 1985)

· State ex rel. Mo. Highways & Transp. Comm’n v. Legere, 706 S.W.2d 560 (Mo. App. S.D. 1986)

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